MISCELLANEA HISTORICO-IURIDICA
TOM XV, z. 1
ROK 2016
Lynn D. Wardle
Bruce C. Hafen Professor of Law
J. Reuben Clark Law School,
Brigham Young University, USA
e-mail: [email protected]
DOI: 10.15290/mhi.2016.15.01.17
Suffer the Little Children: Elective Abortion
as a Sign of Diminished Societal Compassion
SUMMARY
An article on abortion shows the very wide scale of this phenomenon. Abortions are
shown in a historical perspective and through the prism of jurisprudence. The author
presents its categorization – describing therapeutic and elective abortions. In this context
he refers to the welfare of children.
Key words: abortion, welfare of a child.
Słowa kluczowe: aborcja, dobro dziecka.
The poet William Wordsworth put it well when he wrote: “The world is too
much with us”1. We are so driven by “Getting and spending, we lay waste our
powers”2. Truly, in the twenty-first century, we all live in materialistic societies.
For various times in our lives all of us (and for increasingly longer time for an
increasing number of us) seem to be so pre-occupied with acquisition and consumption of “things” such as wealth, resources, goods, commodities, and the
trappings of material “success” that we neglect and forget the weightier matters of intangible importance and more meaningful substance, such as the wellbeing of others and our relationships with them. Materialism produces myopia
that creates shallow, empty, sad lives.
There is no better metric of obsessive materialism in a society than how it
treats its children. And there is no better indicator of how a society values its
children than the practice and regulation of elective abortions.
The Supreme Court co-opted the regulation of abortion in America fortytwo years ago when it decided Roe v. Wade, 510 U.S. 113 (1973) and ruled that all
states must allow unrestricted access to abortions – at least during the first six
months of pregnancy. Until the end of the second trimester, no state regulation
1
W. Wordsworth, The World is Too Much with Us, in Poems, in Two Volumes (1807).
2
Ibidem.
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LYNN D. WARDLE
to protect the life of the child-in-utero is legally permitted under Roe. The decision of the Supreme Court in Roe revolutionized the law regulating abortion
in American and transformed abortion practice in American society. Roe effectively invalidated abortion laws in all fifty states and required all states to legalize abortion-on-demand, at least through the end of the second trimester (6th
month) of pregnancy. And Roe was just the beginning of a series of cases that
have dramatically expanded and transformed the substance of abortion regulation and law in the United States, as well as distorted other areas of law (including informed consent, free speech, etc.). Roe has had almost unprecedented
transformative (and deformative) effect not only upon the practice of abortion
in America (now the most common surgical procedure in the country) but also
upon American constitutional law.
Since Roe, the Supreme Court has decided at least forty major abortion cases
mostly expanding the right of access to unrestricted abortion. (Including other
abortion cases dealing primarily with other issues such as abortion funding,
free-speech rights of abortion protestors, and other related issues there have
been at least fifty (50) Supreme Court abortion rulings in the past 42 years. (See
Appendix I) As a result, virtually no significant regulation of abortion is permitted in America today before the fetus is viable.
The 42-year-old abortion controversy continues unabated in this country. For
example, in November 2015, the Supreme Court announced that it will hear another abortion case soon3. That case involves a challenge to parts of a Texas 2013
abortion law that (1) requires that doctors who perform abortions have admitting privileges at a nearby hospital, and (2) requires abortion clinics to upgrade
their facilities to meet stricter, surgical-center standards.
With virtually no legal oversight, the practice of abortion-on-demand skyrocketed in America. Since Roe v. Wade legalized abortion-on-demand in all fifty
states in 1973, there have been over fifty million (50,000,000) abortions in America. (See Appendix II) Most of those abortions were done for reasons of personal
or social convenience, not for reasons of health. The numbers, rates and ratios of
abortions in the United States peaked in the 1980s and they have been steadily
falling since the. For example, the rate of abortions to women of childbearing
age (15-44 years) has been steadily dropping since about 1980. Chuck Donovan, Why the Abortion Rate is Declining, The Daily Signal (1 Sept. 2014), at http://
dailysignal.com/2014/09/01/abortion-rate-declining/. The rate of abortions is
now at a three-decade low in the United States. Sarah Kliff, the Abortion rate is
at a 30-year low, Washington Post, Feb. 3, 2014 available at http://www.washingtonpost.com/blogs/wonkblog/wp/2014/02/03/the-abortion-rate-is-at-a30-year-low/?tid=up_next .
In November 2015, the U.S. Centers for Disease Control (“CDC”) released its
national abortion report on the number of abortions done in the United States
3
Whole Woman’s Health v. Cole, No. 15-274, cert. granted 13 November 2015.
SUFFER THE LITTLE CHILDREN: ELECTIVE ABORTION AS A SIGN OF DIMINISHED... 295
the most recent year reported (2012)4. The good news is that, although approximately 699,000 babies lost their lives in abortions in 2012, the latest year CDC
has produced figures for, that represents a decline of about 31,322 abortions
from the 730,322 abortions in 2011, according to CDC’s report last year. Moreover, the number of abortions in 2012 was about half the number of abortions in
the 1980s, when more than 1.5 million abortions were done annually.
The bad news is that most of the abortions in 2012 (and every year) are elective abortions – done for reasons of personal convenience. And according to the
CDC figures:
– 58,250 unborn babies die in an abortion every month
– 13,442 prebirth babies die in an abortion every week, and
– 1,915 prenatal infants babies die in an abortion every single day in America.
Also, the true number of abortions is much higher than the CDC reports
as they do not include abortions from several states including the state that
historically has had the most abortions. The Alan Guttmacher Institute (AGI),
historically associated with Planned Parenthood of America, the single largest
abortion provider in America, supplies better estimates of the actual number
of abortion than the CDC data (because the AGI goes directly to the abortion
providers to get its data, while the CDC relies on state collected records). The
AGI data show that as many as 1,000,000 abortions occur annually in the United
States. That equates to over 83,000 every month, 19,230 a week and over 2,700
every single day.
Abortions can be broadly categorized into two groups: The first category of
abortions is therapeutic abortions – abortions that are medically necessary to protect the life or health of a pregnant woman. Fortunately, due to improvements in
obstetrics, gynecology, maternity care, and medicine in general, the number and
ratio of pregnancies that present serious medical risks for the pregnant mother
have dramatically fallen in the past fifty or sixty years. Therapeutic abortions are
medical tragedies and those who have them deserve full support and compassion from society.
The second category of abortions is elective abortions – abortions that are not
medically indicated to protect the mother’s health but which are performed for
reasons of personal convenience and choice. Usually the personal reasons motivating the elective abortion are those of the pregnant woman, but in some cases
the driving force is the personal preference of another person such as a boyfriend, husband, parent, other relative, or perhaps a state agent enforcing an
anti-natalist public policy. Elective abortion is a sign of excessive materialism.
Advocates of elective abortion often cite concerns about increasing welfare
costs to justify pro-abortion policies for welfare-dependent pregnant women.
Such concerns are actually illusory, for even most welfare-dependent children
4
However, The CDC report is about three years behind current, and the data it gathers does not include any abortion data from several states, including California, Maryland and New Hampshire.
Idem.
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LYNN D. WARDLE
will perform service of significant social value (including military service, service in public organizations, community and neighborhood service, charitable
service, service in and through local churches, etc.) that is unmeasured and often largely unmeasurable. In other words, the value of what those would-be
aborted children contribute to society in the long-run far exceeds the cost of
protecting and raising them. Of course, of even greater significance is the moral
value of the life of a living human being, and the moral degeneration cost of
sacrificing the life of a child to avoid inconvenience for the woman with an unplanned pregnancy, and her boyfriend, husband or other family members.
Similarly, some advocates of elective abortions cite concerns about world
over-population and world hunger and world conflict. Why would one want to
bring a child into such a strife-ridden world, when the very existence of an extra
child means greater strain upon food supplies, and so forth. In most cases, in
most places, at most times, such arguments are untrue. First, do we really need
to balance our books on the backs of the next generation? Is it morally justifiable
to make our children pay (even with their lives!) for our generations’ personal
and social debts? Moreover, again, those arguments overlook how much the
child can contribute to solving the problems of the world. Perhaps the unborn
child whose life is being debated will (or would) discover the scientific key to
the next “green revolution” or the cure for some terrible diseases or the solution
to serious global problems. One does not need to look too deeply into our history to identify children who were born into and raised in very deprived, difficult
circumstances who as adults made world-changing wonderful contributions in
all areas of human life and activity.
Ultimately, the regulation of elective abortion is the best metric of the humanity, generosity, and caring kindness of a society. It is the best measure of
how we treat “the least” among us – the least valued members of our society, the
least capable of quickly repaying others for the financial costs and other material inconveniences that their protection and care required.
How we treat “unwanted” children in utero is a portent of how we will treat
other “unwanted” persons who are on the fringes of life and society. Thus,
elective abortion is a harbinger of how we will treat the elderly, the sick, the
poor, and those with expensive disabilities. Elective abortion defines a me-first,
I-want-it-here-and-now society. It foretells and heralds how our society eventually will treat others who can be considered “the least” among us – the least
important, the least self-sufficient, the least able to contribute materially to our
social agendas.
Sadly, data on the practice of abortion in the United States indicate that America is an excessively materialistic society with adult concern for possessions, status, wealth and prestige taking priority over concerns for the well-being of children. As those materialistic considerations grow there is diminishing care for,
protection of, and investment in its children, especially unwanted children in
SUFFER THE LITTLE CHILDREN: ELECTIVE ABORTION AS A SIGN OF DIMINISHED... 297
utero. As a marker of how it values children generally, the abortion-on-demand
doctrine and practice in the United States manifests the pursuit of an adultcentric interests and social policies. It indicates a subordination of child welfare
(even children’s lives) to the convenience and preferences of adults.
One wonders why the needs and welfare of children (even their lives) cannot
be taken into account in calculating where to draw the lines in this controversial social policy regarding elective abortions. Cannot children’s welfare be balanced in the equation somehow? Cannot compassion for unborn children and
recognition of their inherent value as humans have place in our social policy?
Repudiation of the ghastly and immoral Roe doctrine of abortion-on-demand
would be a small, but significant step in the right direction of reviving a culture
that values the lives and being of children, and recognizes the hope and promise
they represent.
Bibliography
Lynn D. Wardle & Mary Anne Q. wood, A Lawyer Looks at Abortion, (BYU Press,
1982)
Lynn D. Wardle, The Abortion Privacy Doctrine (Wm. S. Hein & Co., 1981)
Lynn D. Wardle, Rights of Conscience vs. Peer-Driven Medical Ethics: ACOG and Abortion, has been published in Life & Learning XVIII, Proceedings of the Eighteenth University Faculty for Life Conference at Marquette University 2008 at
23-55 (Joseph W. Koterski, S.J., ed. 2011).
Lynn D. Wardle, Crying Stones: A Comparison of Abortion in Japan and the United States,
14 N.Y.L. Sch. J. Int=l & Compar. L. 183-259 (1994).
Lynn D. Wardle, The Gap Between Law and Moral Order: An Examination of the Legitimacy of the Supreme Court Abortion Decisions, 1980 B.Y.U.Law Rev. 911-35.
Appendix I:
Fifty important Supreme Court abortion decisions
Forty major (and ten other significant) U.S. Supreme Court
abortion Cases, 1971-2014
A. Twelve Major Supreme Court Abortion Decisions in the 1970s
1. United States v. Vuitch, 402 U.S. 62 (1971)
2. Roe v. Wade, 410 U.S. 113 (1973)
3. Doe v. Bolton, 410 U.S. 179 (1973)
4. Bigelow v. Virginia, 421 U.S. 809 (1975)
5. Connecticut v. Menillo, 423 U.S. 9 (1975)
6. Planned Parenthood v. Danforth, 428 U.S. 52 (1976)
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LYNN D. WARDLE
7. Bellotti v. Baird (I), 428 U.S. 132 (1976)
8. Maher v. Roe, 432 U.S. 464 (1977)
9. Beal v. Doe, 432 U.S. 438 (1977)
10. Poelker v. Doe, 432 U.S. 519 (1977)
11. Colautti v. Franklin, 439 U.S. 379 (1979)
12. Bellotti v. Baird (II), 443 U.S. 622 (1979)
B. Ten Major Supreme Court Abortion Decisions in the 1980s
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
Harris v. McRae, 448 U.S. 297 (1980)
Williams v. Zbaraz, 448 U.S. 358 (1980)
H. L. v. Matheson, 450 U.S. 398 (1981)
City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S.
416 (1983)
Planned Parenthood Association of Kansas, Missouri, Inc. v. Ashcroft,
462 U.S. 476 (1983)
Simopoulos v. Virginia, 462 U.S. 506 (1983)
Thornburgh v. American College of Obstetricians and Gynecologists,
476 U.S. 747 (1986)
Diamond v. Charles, 476 U.S. 54 (1986)
Frisby v. Schultz, 487 U.S. 474 (1988)*
Webster v. Reproductive Health Center, Inc., 492 U.S. 490 (1989)*
C. Ten Major Supreme Court Abortion Decisions in the 1990s
23.
24.
25.
26.
27.
28.
29.
30.
Hodgson v. Minnesota, 497 U.S. 417 (1990)
Ohio v. Akron Center for Reproductive Health, Inc., 497 U.S. 502 (1990)
Rust v. Sullivan, 500 U.S. 173 (1991)
Planned Parenthood v. Casey, 505 U.S. 833 (1992)*
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993)*
National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994)*
Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994)*
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357
(1997)*
31. Lambert v. Wicklund, 520 U.S. 292 (1997)
32. Mazurek v. Armstrong, 520 U.S. 968 (1997)
D. Five Major Supreme Court Abortion Decisions from
2000-2009
33. Hill v. Colorado, 530 U.S. 703 (2000)*
SUFFER THE LITTLE CHILDREN: ELECTIVE ABORTION AS A SIGN OF DIMINISHED... 299
34. Stenberg v. Carhart, 530 U.S. 914 (2000)
35. Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320
(2006)
36. Scheidler v. National Organization for Women, Inc., 537 U.S. 393
(2003)*
37. Gonzales v. Carhart, 550 U.S. 124, (2007)
E. Three Major Supreme Court Abortion Decisions from
2010-2014
38. Susan B. Anthony List v. Driehaus, 573 U.S. ___, 135 S.Ct. __, 2014 WL
2675871 (June 16, 2014)*
39. *McCullen v. Coakley, ___ U.S. ___, 135 S.Ct. __ (June 26, 2014)
40. Burwell v. Hobby Lobby, 573 U.S., 135 S.Ct. __ (June 30, 2014)
F. Other Significant Supreme Court Cases Involving Abortion
1. Arnold v. Sendak, 429 U.S. 968 (1976)
2. Guste v. Jackson, 429 U.S. 399 (1977)*
3. Hartigan v. Zbaraz, 484 U.S. 171 (1987)
4. Fargo Women’s Clinit v. Schafer, 507 U.S. 1013 (1993)
5. Lawson v. Murray, 515 U.S. 1110 (1995)*
6. Leavitt v. Jane L., 518 U.S. 137 (1996)
7. Janklow v. Planned Parenthood Sioux Falls Clinic, 517 U.S. 1174
(1996)
8. Lawson v. Murray, 525 U.S. 955 (1998)*
9. Federal Election Commission v. Wisconsin Right to Life, 551 U.S. 449
(2007)*
10. Lefemine v. Wideman, 133 S.Ct. 9 (2012) (Per Curiam) *
* = pro-life free speech or expression case
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LYNN D. WARDLE
Appendix II:
Number of Abortions in the US by Year and Cumulative
(comparing AGI and CDC data)